Commentary
I hope you are sitting down when you read this article.
There is absolutely no way I can possibly sugar coat this, so I’ll just be frank... The NYS Supreme Court Appellate Division’s Fourth Judicial Department has issued their ruling in our quarantine lawsuit against Governor Hochul and her Department of Health (DOH), and they have ruled against the will of the people!
If you feel like you just got sucker-punched in the gut, join the club, my friends.
The court has dismissed our lawsuit, not because we are wrong in our arguments... no, no, indeed we are dead-right. In fact, the court did not even touch the merits of the case. How could they? Instead, the court unbelievably ruled that my plaintiffs somehow do not have standing to sue! If your brain is racing a hundred miles an hour right now trying to figure this out, don’t worry, you are definitely not alone.
Every single person I have told about this court ruling, from my plaintiffs, to fellow attorneys, to family members, and so on, has been downright flabbergasted. Rightfully so. One of my family members told me I needed to break it down for her, like she was a Kindergartener. I’ll do the same for you now, because this issue is so crucial for you to understand, and then for you to explain to others.
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What the Appellate Division court is saying by reversing the lower court and then dismissing our case for lack of standing is that they believe that Senator George Borrello, Assemblyman Chris Tague, Congressman Mike Lawler, and the citizens’ group Uniting NYS did not have the right to bring this lawsuit last year against the Governor and her DOH for their heinous “Isolation and Quarantine Procedures” regulation.
Why not? Because according to this court, my plaintiffs were not injured by the regulation. Why not? Because the court seems to insinuate that the only person with the right to sue is someone who has been forcibly locked in their home against their will, or ripped from their home, taken from their loved ones, and thrown into a quarantine detention center, facility, institution, camp, etc. (pick your noun, doesn’t matter).
The court insinuates that apparently only that person would be injured. Not my plaintiffs. The reason their “logic” is flawed is because we sued pursuant to the separation of powers doctrine, arguing that the Governor and her DOH lacked the constitutional authority to make that horrendous regulation in the first place.
In other words, in short, my legislator-plaintiffs were injured because Hochul and her DOH (Executive Branch) stole the legislators’ power to make law (Legislative Branch) when they created the quarantine reg which was a law (despite the fact that the DOH called it a regulation). The trial court correctly ruled in our favor last summer, and struck the reg down for that exact reason, amongst others.
If you are still scratching your head wondering how on earth is it possible that the Executive Branch stealing a power from the Legislative Branch does not constitute an injury to the members of the legislature, then join the club! Of note, it was so obvious to the trial court judge last year that my plaintiffs had standing, that he didn’t even discuss it in his decision. You can read that decision here if you’re interested.
Q&A…
I’m sure you have a thousand questions, so I’ll try to predict and answer some here:- Which court issued this decision?
- It is the New York State Supreme Court, Appellate Division, in the Fourth Judicial Department. It is the middle court in the three levels of NYS courts, meaning, we began last year at the trial court level (NYS Supreme Court in Cattaraugas County). We won there. Then the Governor appealed to the next court which is the Appellate Division, and that is who reversed the trial court, and dismissed our lawsuit.
- Who were the judges?
- It was a panel of 5 judges that decided the appeal. They are all appointed by a governor. On my panel I had 2 Hochul appointees, 2 Cuomo appointees, and 1 Pataki appointee. You can watch the oral arguments from September here. The Attorney General’s office argued first and starts at 48:00 minute mark. Then I was next, and that starts at 1:02:35 mark.
- Is there another court above this one that I can appeal to now?
- The final and highest court in New York State is the Court of Appeals. It sits in Albany, and is presided over by a panel of 7 judges. They, too, are all appointed by a governor. They do not hear all cases that apply to the court (similar to the US Supreme Court), so I would have to draft a motion to try to convince the high Court to hear our case!
- Now that this court overturned the lower court’s decision, will Rule 2.13 (the quarantine regulation) be reinstated?
- Unfortunately, this court has opened the door and paved the way for Hochul and her DOH to reissue this anti-freedom, anti-American regulation. Fire at will, is what the court has proverbially told them. There is nothing stopping the tyranny of the Executive Branch now.
- Does Rule 2.13 allow Hochul and her DOH to set up actual quarantine camps?
- The reason the public has dubbed this regulation the “quarantine camp regulation” is because the language in the reg makes it crystal clear that the DOH can pull you from your home (and your life) and, with the force of police, hold you anywhere they deem appropriate, including “other residential or temporary housing”… Remember, the reg says they don’t have to prove you are sick, they can hold you for however long they want, and there is no way for you to get out of lock up or lock down (unless you get a lawyer and sue them)!!! You can read articles I’ve written and interviews I have done about the reg and the lawsuit on my Substack here, or on my website: CoxLawyers.com
- By the way, I fact-checked the Associated Press’ phony “fact check” article they ran shortly after my oral arguments in September, and I determined their article to be FALSE. It’s particularly surprising because that AP reporter contacted us (my plaintiffs and me) for clarification prior to publishing her false article. Clearly she ignored what we said! Anyway, this dystopian regulation absolutely allows Hochul and her DOH to institute quarantine locations, whether you call them facilities, institutions, halls, or camps, it matters not. It’s still unconstitutional!
- What do my plaintiffs think?
- Obviously, they are very upset by this decision. An official press release will go out shortly.
Hope Is Not Lost!
There is no denying that I have had to dig very deep these past 48 hours since I received the ruling. My family and close friends who I have shared the horrible news with have all asked me the same question, “What are you going to do now? Stay and fight? Or let it go?”This has been a true David v. Goliath battle for the ages, as described in a recent Brownstone Institute article on this epic legal battle, and my family and close friends know the immense sacrifices I’ve endured to bring and fight this case these past almost 2 years now. As you may imagine, I have had to do some significant soul searching the past couple of days. Here is what I have come to…
I can tell you this with certainty, I will never stop fighting for you, New York! I believe that we can take back this state, and as we do, we will liberate the rest of this country which has fallen into very dark times, as our Constitution, and thus our freedoms, are tossed aside by the ruling class elites without a second thought. And then, once our nation is back to being that shining beacon on a hill, then the rest of the world can follow. New York is the key. And I have hope and faith. I will share it with you now…
I am going to appeal this case to the Court of Appeals, our highest court in New York. The Court of Appeals is a court of constitutional integrity. The Court will understand the magnitude of this lawsuit and the Appellate Division’s erroneous decision. I believe the high Court will not fall prey to the tyranny and corruption that goes on in the halls of our capitol in Albany.
The Constitution is on our side. The case law is on our side. Truth is on our side. And most importantly, the will of the people is on our side. Remember Thunderstruck? Remember Reverberating? Remember the hundreds upon hundreds of you who showed up to oral arguments in Rochester back in September? Remember the thousands of you who have come to hear me speak in-person at events across the state, and in states outside our New York borders? Remember the tens of thousands of you who have shown me your support in emails, social media posts, letters, cards, phone messages etc.?
Indeed, I have faith.
Originally published on the author’s Substack, reposted from the Brownstone Institute
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
